Robinson v Ng - [2014] ACTSC 227

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Robinson v Ng
Citation:	[2014] ACTSC 227
Hearing Date(s):	20-21 November 2013, 31 March-3 April, 25-27 August 2014
DecisionDate:	7 November 2014
Before:	Mossop M
Decision:	The proceedings are listed on 17 November 2014 at 9:30 am to hear any submissions in relation to costs and interest on past out-of-pocket expenses and for the making of final orders.
Category:	Principal Judgment
Catchwords:	PERSONAL INJURY – negligence – whether dentist negligent in not ceasing attempted tooth extraction prior to pushing tooth root into maxillary sinus – plaintiff suffering from osteomylitis as a consequence ‑ whether there was a causal connection between the dentist’s treatment and subsequent Bell’s palsy – assessment of damages ‑ turns on own facts
Parties:	Mary Ann Robinson (Plaintiff) Dr Hock Nien Ng (Defendant)
Representation:	Counsel: Mr D Higgs SC (20-21 November 2013), Mr H Marshall SC (31 March-3 April, 25-27 August 2014) with Mr R Taylor (Plaintiff) Mr F J Purnell SC (Defendant)
Solicitors: Elringtons (Plaintiff) Ken Cush & Associates (Defendant)
File Number(s):	SC 105 of 2012

Introduction

This is a claim of negligence brought by Mary Ann Robinson against a dentist, Dr Sean Ng. During the course of an attempted extraction of one of her molars, part of the root of the tooth was pushed upwards through the wall of the plaintiff’s sinus and was lodged in the sinus. The plaintiff required remedial surgery and claims damages arising out of those events, including a substantial claim for economic loss.

The claim is pleaded in both contract and tort. No submissions were ultimately directed to any difference in relation to liability or quantum between the claim in tort and contract. I have treated the case and assessed it on the basis that it is a claim in tort.

Overview of the facts

The basic chronology of events is uncontroversial.

The defendant is a dental practitioner and, as at 2009, was employed by a dental clinic known as Modern Dentistry. Following his university studies he commenced working as a dentist in December 2006 or January 2007 and, as at December 2009, had practiced for approximately 26 months.

On 29 December 2009 the plaintiff attended Modern Dentistry and was treated by the defendant. The plaintiff’s presenting complaint was a painful upper right molar ‑ tooth 17 located on the right side of her jaw. The defendant assessed the plaintiff and arranged for her to have an x-ray (First X-ray). The defendant told her there was extensive decay under the existing filling in tooth 17 and explained that her options were root canal therapy or tooth extraction. The plaintiff opted for extraction but the attempted tooth extraction was prolonged. During the course of the extraction the crown of the tooth was broken. The defendant interrupted the attempted extraction and attended to two other patients and then recommenced his extraction attempt. He managed to remove a portion of the root of the tooth. He took a further x-ray (Second X-ray) and then continued. At that point the remaining portion of the tooth that the defendant was attempting to extract was pushed through the wall of the plaintiff’s maxillary sinus. A further x-ray was then taken (Third X-ray). The defendant sutured the tooth socket and sent the plaintiff away in anticipation of being able to make arrangements for her to see a specialist maxillofacial surgeon in the following days.

Immediately after leaving the dental surgery the plaintiff went to the Calvary Hospital emergency department and an appointment was made with the maxillofacial unit at the Canberra Hospital for the next day.

On 30 December 2009 she consulted Dr Witherspoon, a registrar at the Canberra Hospital and was prescribed antibiotics and told to return on 4 January 2010.

Between 30 December 2009 and 4 January 2010 the plaintiff rested at home. She experienced discharge from the tooth cavity, a progressive loss of control of muscles on the right side of her face and the loss of sensation on the right side of the face.

On 4 January 2010 she returned to the maxilla-facial unit at the Canberra Hospital and was attended to by Dr Hapangama and Dr Witherspoon. She was advised that she had developed a severe infection and required admission to the hospital for intravenous antibiotics and further investigations. As a result of those further investigations she was diagnosed with Bell’s palsy and told that she required surgery to remove a tooth fragment present in her maxillary sinus. On 6 January 2010 she underwent surgery at the Canberra Hospital performed by Dr Hapangama to remove the tooth fragment from the right maxillary antrum and to close the oroantral fistula. She subsequently experienced a loss of feeling and sensation to all of her upper teeth and gums on the right-hand side. She was discharged from the Canberra Hospital on 7 January 2010.

In the months following the operation and up until at least February 2011 the plaintiff suffered osteomyelitis in her jaw. She received treatment from Professor Frank Bowden of the Infectious Diseases Unit of the Canberra Hospital up until September 2011.

What occurred on 29 December 2009?

There was a very significant contest at the trial over what occurred at the consultation on 29 December 2009. This is significant because the principal allegation of negligence is that the defendant continued attempting to remove the tooth after the Second X-ray in circumstances when he should have stopped and referred the plaintiff to an oral surgeon or general dentist with significant oral surgery experience. In assessing that allegation it is essential to understand to as great extent as possible the factual circumstances in which the breach is alleged to have occurred.

There are a number of different sources of evidence which I will address separately:

(a)the oral evidence of the plaintiff and Harry Robertson, the plaintiff’s husband;
(b)the oral evidence of the defendant and Monica Seisun, the dental assistant to the defendant during the procedure on 29 December 2009;
(c)the oral evidence of Amanda Bubear, the practice manager for Modern Dentistry who was working on 29 December 2009;
(d)the contemporaneous and other records produced by the defendant and Ms Bubear.

Evidence of the plaintiff and her husband

The plaintiff and her husband gave evidence and were cross-examined. I will refer principally to the evidence of the plaintiff although I will note where that evidence is corroborated on significant points by the evidence given by Mr Robinson.

In December 2009 the plaintiff had pain in her upper right molar. It would hurt if she drank cold water or had hot drinks and got them onto the tooth. She took painkillers such as aspirin or some Panadeine when it got bad. She noticed the pain around Christmas Day 2009. The pain got worse and became constant. The plaintiff started to feel a bit feverish and chilled and a little unwell. She tried to phone her regular dentist but there was recorded message saying that the clinic was closed until 7 January 2010. She had previously seen Dr Bubear, the principal dentist at Modern Dentistry. She rang Dr Bubear’s surgery and was told on the morning of 29 December 2009 that no appointment was available. Later that day when travelling to Canberra she was told by the clinic that an appointment was available. She was told to come to the surgery at 2.45pm. She and her husband arrived at the surgery around 2.30pm. She was seen fairly quickly, within five or 10 minutes. A dental assistant, Monica Seisun led her into the dental surgery. She was introduced to the defendant and he asked her what was wrong. She described the symptoms, saying she was having trouble when she drank hot or cold beverages and was experiencing aches and pains in the jaw. She mentioned that she was concerned it could be infected.

The defendant examined her and said he would take an x-ray. This was the first of three x-rays taken on the day ‑ the First X-ray. That x-ray, which was in evidence, shows, relevantly, a molar tooth which clearly has a significant filling. After the x-ray was taken, the defendant explained to the plaintiff that the tooth was decayed under the filling, that the decay was quite extensive and would involve the nerve. He said that the nerve involvement would be the cause of the pain.

She asked him whether she could get a filling. He said that it was too late for a filling and that what she needed was root canal therapy or an extraction. She said that she didn’t think she wanted root canal therapy because of her previous experience with that procedure in relation to the equivalent tooth on the other side of her mouth. She said that she would prefer to have an extraction than go through another root canal therapy like that. He said that was fine, she asked whether he could do it straight away and he said yes.

She thought he looked very young and she remembered specifically asking him whether he was okay with doing the extraction at the time. He said that he was, that he was always prepared to offer extractions and that his patients were always very happy with his work. He said he had done many extractions.

The defendant asked if the plaintiff had ever had heart disease or bone disease and she explained about the myocarditis that she had as a younger woman. He said that was of no consequence.

The defendant gave the plaintiff a local anaesthetic and then started to work on the tooth. He did warn her that there would be some crunching noises but there was no other description of the pros and cons of going ahead with the extraction. There was no other conversation about the risks of an extraction with this particular molar or any other treatment that would be possible for this problem that she presented with. She said there was no conversation about how long the extraction would take or about the need to interrupt the extraction for the purposes of seeing other patients.

The extraction commenced shortly after 3:00 pm. After the process had been going for some time the plaintiff heard a loud crunch or cracking noise. She understood that this was the top of the tooth breaking because she had experienced that once before during an extraction.

The defendant said the crown of the tooth had broken and that there was nothing to worry about because that commonly happened in extractions.

The plaintiff also said that it was approximately half of one hour to three-quarters of one hour before the crown broke, although it is not clear whether this was from the start of the consultation or the attempted extraction. The plaintiff recorded that she had a very sore jaw.

The defendant did some additional work after the crown broke, saying that he was going to get the roots out. He indicated that he was getting movement of the roots. It was at that point that he said that he was going to have to see another patient. The plaintiff said that she asked him what would happen if she left. The defendant said that she could leave but if she did not he would come back and finish the procedure when he had seen the other patient. She agreed to stay but asked her husband to come from the waiting room and sit with her.

Mr Robinson came into the room. He recalled that he had been sitting in the waiting room for over an hour.

The plaintiff’s evidence was that she had a conversation with her husband about her tooth not coming out and maybe the dentist couldn’t finish the job. She said she asked him what would happen if she got up and left. Mr Robinson gave his opinion that she couldn’t just leave because if the anaesthetic wore off they didn’t know what would happen. Mr Robinson said that the plaintiff had told him that the crown of the tooth had broken off and that he had gone to work on another patient. Mr Robinson corroborated the plaintiff’s evidence about having asked him whether she should just leave and his response.

The plaintiff gave evidence that her husband was in the room and denied that Ms Seisun remained there. Mr Robinson said that no one else waited with them.

The defendant returned about 45 minutes later. Mr Robinson corroborated this. The defendant returned, said he was going to finish the job and asked how her anaesthetic levels were. Mr Robinson said the plaintiff asked the defendant what would happen if he could not get the tooth out, to which he said he would get it out. The defendant then had “a poke and a prod” and topped up the plaintiff’s anaesthetic.

The plaintiff said that the defendant used greater force than previously, pushing upwards strongly. There was then what the plaintiff described as “a crack and loud, a bit of a bang” and the defendant expressed some relief saying that he had got one of the roots out. He said that it would make it easier for the other one to come out and that he was going to take another x-ray which he did. That x-ray was the Second X-ray. The plaintiff thought that the root came out about half of an hour after the defendant recommenced work. Mr Robinson said that the defendant did not, at this stage, suggest that he should stop and refer the plaintiff to a specialist.

The Second X-ray shows that the crown of the tooth including the substantial filling had broken off and was no longer present. The defendant held the x-ray up to the light and showed the plaintiff the tooth root in the socket that was still there. He said that he was going to get the other root out. The plaintiff said that he gave her no warning about the risks of proceeding further. She was apprehensive as she was not confident in the defendant. She said she was exhausted, had considerable pain in her jaw and was starting to get a headache.

The plaintiff said that if she had been given an opportunity to have the extraction completed by someone more senior then she “most definitely” would have accepted that.

The procedure continued and the plaintiff described the force as getting even stronger and that she had trouble holding her head against the defendant’s push. She said that after another half hour “everything went wrong” she heard a bang inside her head and felt an acute pain on her cheekbone. She grabbed her face and asked the doctor what happened.

She said that he looked rather frightened or panicky. He was quiet and had a serious expression on his face. He looked a bit ruffled.

The defendant said he would take another x-ray and did so. This was the Third X-ray. He took the x-ray and while waiting for it to develop asked her to hold her nose and blow and air came out of the socket into her mouth. He said, “it appears I’ve made a communication between your sinus and your mouth”.

The Third X-ray shows a gap where the tooth and its roots used to be. However, above where the roots used to be in a position identified as part of the sinus, a fragment of the roots is visible.

The defendant then gave the plaintiff advice that he would sew a pack into the tooth socket and that she should not smoke and or drink through a straw. He said he was going to phone a specialist to make an appointment. He left the room to do so.

He returned to the room and said that he had tried to contact Dr Dylan Hyam, an oral surgeon.

Mr Robinson appeared to be alarmed at what he was observing.

The plaintiff asked the defendant whether or not she should go to hospital. The defendant said that would not be necessary. She asked if she could have the x-rays and he gave them to her. She expressed a desire not to pay him for this and there was a discussion in which he offered to pay the cost of any specialist less his fees. The plaintiff and Mr Robinson then left. The defendant did not write any prescriptions for medication for her. The absence of any prescription was corroborated by Mr Robinson. Mr Robinson said that they left the surgery after 6:00 pm.

The plaintiff then went to Calvary Hospital, arriving at about 6:30 pm. She had been feeling nauseous and dizzy since the incident occurred and was feeling very shaky. While sitting in the emergency room she fainted and was taken in to see a doctor. She was told that she had a tooth root in her sinus and that she would need to have surgery to remove it. The doctor made an appointment for her with the maxillofacial unit at the Canberra Hospital in Woden on 30 December 2009, the next day. She was given a prescription for painkillers and antibiotics and started that night.

Evidence led by the defendant

The defendant, Ms Seisun and Ms Bubear gave oral evidence and were cross-examined.

The defendant

The defendant said that the plaintiff had told him that she “self-medicated on antibiotics and painkillers and that she’s a veterinarian”. He recalled telling her that antibiotics were never a definitive treatment and that he would have a look to see what was happening. Having examined the tooth, the defendant took the First X-ray. While Ms Seisun was developing the film he had another look at the tooth and when the x-ray was returned he explained it to the plaintiff. He said he could see a big area of decay that had been happening for quite some time that had extended into the nerve and it looked like she had an abscess. The defendant said that in response the plaintiff said once again that she had self-medicated on antibiotics in the past and that had previously worked but did not on this occasion, leading her to seek to address the problem.

The defendant said that he explained in some detail the three options which he identified. The first option was root canal therapy and he described in his evidence matters of detail which he said he explained to the plaintiff relating to the process of root canal therapy, the time that it would take and the cost that was involved. The plaintiff said that root canal therapy had not worked in the past and that she had to have the relevant tooth extracted. The defendant then described the second option which was extraction. This option was not elaborated on but the plaintiff said that she would prefer to have the tooth taken out. The defendant then said that he told the plaintiff:

(a)“In terms of taking the tooth out, there is a few things that I have to warn you about because of how heavily filled the tooth is.”
(b)“There is a potential risk that the tooth may fracture, the crown or the tooth may fracture, and it may leave the roots behind.”
(c)“Because the roots are close together and the anatomy of that area is close to the sinus, there’s a chance that we communicate or pierce the sinus.”
(d)“There is always a risk of infection as in any open wound, a risk of getting dry socket … there’s also the possibility of getting numbness in the area if a nerve is nicked.”

The plaintiff said, “that’s fine” and the defendant told her that the cost of the extraction was $240.

The defendant said that he also gave the plaintiff a third option of being given antibiotics and painkillers and referred to Dr Carmelo Banano or a specialist (either Dylan Hyam or the surgeons from the Canberra Surgicentre) once the holiday period was over. In cross-examination the defendant was quite explicit that he had referred to each of these three options. He also said, “antibiotics may not work it is not a definitive treatment.”

The plaintiff said that she would prefer to have the tooth out and the defendant then said:

I need you to be aware that I do not perform surgicals. I’m just a general dentist. So even if I do remove the tooth but if the crown of the tooth fractures, I will still need to refer you to either Carmelo Banano or Dr Dylan Hyam once the holiday period is over.

The defendant said that he warned the plaintiff that he would still need to eventually refer her if he could not remove the roots because of his lack of ability to perform surgicals. He said that from the First X-ray he had predicted that the top of the tooth would break and that he warned the plaintiff that if the tooth broke he would try to “elevate it out” for some time to see if he could get any movement. He said that process could take some time and that he may need to work in between rooms. He said that in the event that this was unsuccessful he could try to remove the part of the nerve that was exposed with a file and use antibiotics and painkillers while the plaintiff waited for the other doctors after the holiday period. He said that the whole conversation from first introduction took about 20 to 25 minutes.

He then applied numbing cream and waited for about five minutes for it to work. He then administered local anaesthetic by injection. He then recalled sitting the plaintiff up and saying, “Have a rinse. Take a bit of a break; I’ll give it a few minutes for the local anaesthetic to work. I’ll keep you updated about what I’m going to be doing before I do anything, so take a bit of a break first.” The plaintiff said, “Thank you”.

He then took up the opportunity to write some clinical notes. His evidence was that he wrote up to the end of the sixth paragraph set out at [81] below (“... pt consented”).

He then started to work with an elevator to elevate the tooth. The elevator is a dental tool which is used to pry the edge of the tooth away from the periodontal ligaments. Within two to five minutes the crown of the tooth broke. The plaintiff was a little bit alarmed. The defendant explained that the tooth had broken, there was a lot of decay in it and that he was going to try to elevate the root structure out.

He then used the forceps to try to grip the remaining root structure. He could not get a grip so after two or three minutes he continued with the elevators for another 10 minutes. In cross-examination he described these two processes as taking 15 minutes. The plaintiff told the defendant that she could feel some pain. He therefore topped up the anaesthetic. He waited for another two or three minutes for the anaesthetic to work and then continued with the elevation. He could not get any movement so he switched to using dental files to try to pull the tooth out. Those files were used in an attempt to grip the tooth. He used this method for about 10 minutes.

The defendant said that at that point he told the plaintiff that he was unable to remove the remaining buccal root structure and he would have to refer to her to Dr Carmelo Banano or a specialist.

The plaintiff appeared to the defendant to be tense. She said “I don’t want to see a specialist, I want a full extraction. I don’t want to be in pain over the holidays.” The defendant said:

I will write you a course of antibiotics and painkillers that will tide you through the holiday period is over. If I stop right now the pain won’t be too bad … I don’t want to cause you more harm than good. I don’t want to put you through too much trauma.

In cross-examination the defendant agreed that he was concerned at that point and the concern was primarily the perforation of the sinus cavity. The plaintiff then said “why can’t you just raise a buccal flap, I’ve done it many times before.” The defendant said then that he was shocked and said, “I don’t do surgicals and I’m not equipped to do surgicals.” The plaintiff then said, “This is silly… I want you to carry on, I’m not leaving, I want the damn tooth out.” At that point the defendant told Ms Seisun to let Ms Bubear know what was happening and that the plaintiff would not leave. Ms Seisun left the room and spoke to Ms Bubear. She was out of the room for about five minutes. The defendant then said that he needed to attend to some other patients and he would continue the procedure when he came back. The plaintiff requested that her husband come in and he did.

The defendant said that when he left the room he was hopeful that she would have changed her mind by the time he came back.

The defendant denied that he was under any pressure to try and get the extraction finished more quickly. He said:

My main pressure was for her to understand that I wanted to stop, that I didn’t want to carry on, but there was no pressure to try and finish it. Other than to see the other two patients, there was no other pressure to try and hurry up the process.

Referring to the whole of the process he said, “I have on numerous occasions said that I wanted to stop, but Mrs Robinson wanted a full extraction so I carried on, based on her request.”

The defendant then went to see two other patients. Ms Seisun remained with the plaintiff initially but one of the other patients had a chipped or fractured front tooth and the defendant asked Ms Seisun to come and help him for a few minutes to set up the filling materials that he needed for that procedure. She stayed with him for no longer than five minutes. The procedure took between 20 and 25 minutes. He then checked that everything was okay with the plaintiff and said, “Give me another 20 minutes and I’ll be back”. He said that he spent 15 to 20 minutes with that other patient who just required a consultation and a prescription.

When he returned to the plaintiff, Ms Seisun was there as was the plaintiff’s husband. It was about 45 minutes since the defendant had left. He estimated that he returned at about 4:45 pm or 4:50 pm.

He said that the plaintiff said that she had had extractions done in the past and this has never happened. The defendant said, “I’ve warned you that this may happen, I will refer you to either Dr Carmelo or the specialist and I will put you on antibiotics and painkillers to tide you over the holiday period. You shouldn’t be in too much discomfort.” She said, “No I want a full extraction. I don’t want to be in pain over the holidays.” In cross-examination the defendant said he had again used the phrase “I do not want to do more harm than good, I don’t want to put you through too much trauma.” He also said that at this point the plaintiff was still very insistent on him continuing because she then talked about guiding him through a step-by-step procedure on how to do the buccal flap procedure.

He then topped up the anaesthetic and waited for about five minutes for it to work. Then he tried to elevate the tooth. He couldn’t get any movement so he tried to use a drill to separate the roots by sectioning off the palatal root from the buccal root. Shortly after using the drill he was able to split the roots and then continued to elevate for about another 10 minutes in order to extract the palatal root.

He then took the Second X-ray and had it developed. This took about another five minutes. He showed the plaintiff the x-ray pointed out the remaining roots and said that he was going to try to remove the roots.

He then tried to elevate the remaining roots. He did not get very far with that so he switched to the dental files and tried to pull the roots downward. That was not successful so he tried elevating again. Within 10 minutes he noticed that the root had disappeared. That could have meant he was getting significant movement or that he had pushed it into the sinus. He said “I might have communicated or pierced the sinus I need to take another x-ray to look at the root structure”.

The plaintiff seemed very tense but said okay. Up until the point when the root was dislodged into the sinus the defendant had not detected any movement in the buccal roots.

He took the Third X-ray at 5:25 pm or 5:30 pm. He examined it and showed the plaintiff and told her that he had dislodged a buccal root into her sinus and that he would need to send her to a specialist. She was very upset she said “straight away”, “I demand you cover the cost of the specialist”. He said, “I’ve warned you about the potential risk already… I didn’t want to cause you more harm than good, but I’ll try to arrange for a specialist visit for you as soon as possible.” He then got Ms Seisun to ask Ms Bubear to see if the plaintiff could see a specialist and Ms Seisun left the surgery to do so.

He also went out and made some phone calls himself. When he returned the plaintiff was very angry and said, “I do not want you to touch me at all”. He explained that he needed to stitch the area up as best he could. Mr Robinson encouraged the plaintiff to have the area sutured and that is what happened. He then told her not to blow her nose or drink through a straw and to take antihistamines. He said “I will prescribe you antibiotics and painkillers”. She said, “No I do not want your antibiotics and painkillers, I’ve got my own”. The defendant said that he would cover the cost of the specialist minus the cost of her consultation and x-rays. She requested to take the x-rays with her and the defendant gave them to her. The defendant estimated that she left at about 5:45 pm or 6:00 pm.

He then “had a debrief with [Ms Seisun] and [Ms Bubear] about what happened” and finished up his clinical notes. He then had Ms Seisun and Ms Bubear sign his notes.

Monica Seisun

The dental assistant who was present, Ms Seisun, also gave evidence about what occurred prior to the commencement of the extraction. Her evidence was to the following effect. The plaintiff was given three options: (1) pain medication and antibiotic cover and then being sent off to a specialist surgeon to have the tooth extracted, (2) the defendant could extract the tooth or (3) root canal therapy and a crown tooth over the top. The plaintiff was very clear that she wanted the tooth removed that day because she didn’t want to have pain over the holiday period and that root canal therapy had not worked before.

The defendant said there are risks in the surgery and in addition because of the holiday period all the surgeons were away. The risks that were explained were that if the tooth became compromised the defendant would still have to send Mrs Robinson off to a surgeon, the risk of the tooth crumbling and breaking away and not coming out in one piece, the risk of sinus damage because it was close to the sinus cavity and the risk of dry socket after the tooth had been removed. In relation to these risks the plaintiff said “That’s fine” and that she had faith in the defendant.

She said that the conversation before the doctor actually did any extraction was “a good half an hour”.

She said that the defendant said the option he thought best was “seeing a specialist just because over the holiday period ... if something went wrong, and because it was just a heavily filled tooth ... he would still have to send her off but that if she wanted the tooth out that day, he would take it out.”

After the procedure commenced she estimated that it was 10 minutes of using the elevator before the crown tooth broke off. She said that immediately prior to topping up the anaesthetic that the defendant said that he could send the plaintiff off to the specialists once they came back from holiday and could cover her by giving her some pain relief and antibiotics. The plaintiff said that she wanted the tooth out and that was what was done.

The defendant sent her out to tell Ms Bubear that he would need a little bit of extra time and that he would see the other patients while the plaintiff was still there. She did so. Ms Bubear told her to set up the other rooms. She set up two other surgeries. She then went back and told the defendant what happened. At the plaintiff’s request she brought in Mr Robinson. She stayed with Mr and Mrs Robinson. She observed that Mrs Robinson seemed quite tense. She heard the plaintiffs say that she couldn’t believe that this had happened, a simple procedure like this and this had happened. Her voice sounded agitated. She said that she waited there for about 20 minutes before the defendant returned. Later in her evidence she said it was about 30 minutes.

Upon returning to the room the defendant restated that he could send the plaintiff off to see a specialist. The plaintiff responded “I just want this damn tooth out”. He then took another x-ray.

After 20 further minutes of unsuccessful attempts at extracting the roots the defendant said that he could send the plaintiff off with antibiotics and pain relief and the plaintiff said, “I just want to damn tooth out.” The plaintiff then said that the defendant should cut down on the side of the buccal flap and as “she had performed this procedure on a horse, as she was a veterinarian ... she would step by step tell [the defendant] how to perform this procedure.” The defendant said, “No” and that he was just a general dentist and he was not set up to perform what the plaintiff was asking of him.

The defendant then continued to attempt to take the tooth out. The tooth then disappeared into the sinus. The procedure stopped, the plaintiff was told what had occurred and the plaintiff became quite angry and said she could not believe this had happened to her tooth. The defendant then said that he would like to stitch her up and refer her to an oral surgeon. The plaintiff did not want to let him but was persuaded by her husband who said that it would be best to have the area stitched. Once the stitching was done the plaintiff said she did not want to pay for any of the appointment or any specialist appointments to follow and that she wanted her x-rays.

When the plaintiff and her husband left there was a further conversation between the defendant, Ms Bubear and Ms Seisun when they were going over the patient card before Ms Bubear and Ms Seisun signed it. That process took about 20 minutes to half an hour while she was cleaning up.

Amanda Bubear

As at 29 December 2009 Amanda Bubear was the practice manager at Modern Dentistry. She said that the plaintiff arrived prior to her 2:45 pm appointment and left at about 6:00 pm. She gave evidence about the making of the appointment and what was said over the phone. She had initially offered her a 3:45 pm appointment and then because of the cancellation managed to book her for 2:45 pm. After approximately one hour into the appointment she went to see what was happening because she had patients waiting. She could see that the defendant was performing an extraction and did not interrupt. The next thing that she recalls was that Ms Seisun came and told her that the tooth had broken during the extraction so the defendant had stopped treatment but that the plaintiff was refusing to leave and she wanted him to complete the extraction.

She arranged for Mrs Robinson’s husband to go into the surgery because she did not want the plaintiff to be on her own while the defendant and Ms Seisun were looking after other patients. She popped her head in during the wait and said that the defendant should not be much longer. The plaintiff did not seem to be in any pain but was agitated about the wait.

The next thing that occurred was that, some time after the defendant had finished treating other patients, he came to advise Ms Bubear to call Dr Dylan Hyam because a piece of tooth had dislodged into the sinus. She tried to call, there was no answer. She then tried the Canberra Surgicentre but no one was there. She tried the Canberra Hospital and advised that the registrar was on duty not a specialist. The defendant then asked her to contact Dr Bubear. She did and the defendant had a conversation with him. She also spoke to Dr Bubear. She advised the plaintiff that there would be no charge and that they were trying to contact Dr Dylan Hyam and that someone would be in touch in relation to that. She confirmed that the plaintiff had been given the x-rays. The plaintiff left at about 6:00 pm. She then had a discussion with the defendant and Ms Seisun in relation to what happened. In that discussion she was told again that the plaintiff had refused to leave.

Documentary evidence

The only contemporaneous records were the notes made by the defendant on the plaintiff’s patient card. While some of those details were filled in during the course of the consultation, the majority were completed after the plaintiff had left and in circumstances where the defendant was aware of having created the communication with the sinus and having pushed the tooth fragment into the sinus.

The defendant’s clinical notes provide:

c/c - pain that affects sleep, extreme sensitivity to cold, sometimes heat
o/e - 17 TTP and heavilly filled, PA revealed 2° caries into nerve, pt said has happened before and self-medicates - she is a vet
tx - discussed option 1) RCT & crown
option 2) extraction
pt opted for exo, claims RCT does not work on her
pt discussed the possible problems esp with roots, will keep her updated, but need to work in between rooms, informed before procedure started, also referral if probs, pt consented
total 3 x Articane, difficult exo, coronal portion dislodged and 2° caries extended deep, advised possibility of leaving roots and referral to Specialist, pt got panicked and insisted on finishing exo fearing pain. Finally, palatal portion elevated and close to completion, Bu portion dislodged into sinus.
Check PA taken, pt informed, called Surgicentre and Dr Dylan Hyam, nil Oral Surgeon @ Canberra Hospital only GP Dr Witherspoon.
Socket packed with Gelatamp, sutured, advised nil nose blowing, sucking through straw, smoking and pt will continue on antibiotics and painkiller and anti-histamines till sees Specialist
She took 3 x PA with her, pt concernd about cost and started blaming, did warn about complication and referral but to keep peace will take cost of Specialist minus cost of tx here, so will reimburse balance. Pt agreed - husband and Monica in room at time of tx.

There was also a document produced by Ms Bubear at the request of Dr Bubear in the days following 29 December 2009 (Ex 19). It was a series of unadorned dot points which described Ms Bubear’s dealings in relation to the plaintiff’s treatment. On the critical period between arrival at the practice and departure at around 6:00 pm, the document provided:

Arrived for appt with hubby, commented on new practice. Double checked dead files but no record.
Pt confirmed she would prefer exo & asked if SNg performed them. Advised he does the bulk of AWB’s, but no guarantees for today – as per standard.
Appt for half an hour, not done at 45mins. Checked at approx hour mark, exo in progress. 2 pts waiting. Advised pts about delay.
MS advised tooth had broken, pt refused to leave, wants exo
SNg saw waiting pts in spare surgery, arranged for hubby to wait in surgery with Mary-Ann
Checked up at one stage to advise shouldn’t be long, pt agitated but didn’t indicate pain. Hubby OK.
Other pts treated, & 1 FTA so SNg able to continue tx.
SNg came to advise that piece of tooth had broken & lodged in sinus. Tried Dylan Hyam – nans; Sugicentre, closed, Canberra Hospital – only registrar so SNg asked to call AWB

On 18 January 2010 the defendant wrote to his insurer in the following terms:

Maryann presented for an emergency appointment on the 29th December, '09. She presented with pain on 17 and had been self-medicating. She had also self-medicated when the tooth had flared up in the past. A PA was taken prior to treatment to diagnose her problem. PA revealed decay into the nerve, tooth was TTP with large coronal amalgam restoration. She immediately declined RCT even before I mentioned the option, stating that RCT did not work on her. I mentioned extraction would be the option for permanent treatment or for her to continue antibiotics and have it extracted at a later date. She opted for extraction, in which I mentioned the chance of a specialist referral if we encountered complication. I also told her that if the root fractured, we would leave it and that post-op should not be too painful, other than the trauma of extraction. I also informed her that I may need to operate in between rooms, and gained patient consent.
The extraction was difficult, coronal portion dislodged with elevation with caries extended apically. The tooth was brittle and kept breaking in small pieces. I informed the patient of what had happened and told her I would stop and put her on antibiotics and refer her for surgical extraction. She was also informed that there would be no charge if we couldn't get the tooth out. She immediately got aggressive and said “I want the damn tooth out", and was worried about pain, even though we pre-warned re post-op pain in case of fracture. She said as she was a veterinarian she knew the implications and knew she would be in pain. She was very pushy in her demands.
I had to stop at that point and leave her to attend to other patients, as pre-informed, but she was not happy and demanded to be worked on immediately. She then requested for her husband to be in the room.

45 minutes later, we continued treatment. The whole time she kept telling me what to do in terms of extraction and kept pressuring me with time, telling us she had performed the procedure on dogs. Palatal root was removed and finally when buccal portion was moving, it got pushed into the sinus.
I stopped the treatment, explained to her what had happened and told her I needed to suture the area and place some dressing on the tooth. She resisted and did not want the sutures until her husband convinced her. In the meantime we tried contacting Dr Dylan Hyam at Canberra Hospital, but he was not available, only the registrar. The dressing was placed, sutured and she was advised to continue on antibiotics, painkillers and antihistamine until she saw the specialist. She was also advised not to blow her nose or suck through a straw or to smoke.
She started blaming me and stating she was not happy and wanted us to pay for all of her medical bills. We said we would continue to try to contact the specialist, but as it was a holiday period we were unsure who was available. But the patient was assured we were looking into it and was not charged any fees, not even for the consultation or x-rays. She took the x-rays with her just in case, and said she would get information.

Assessment of the evidence

Both the plaintiff and her husband were credible witnesses. Having regard to the circumstances of the events and in particular the fact that she was having a tooth extracted in circumstances in which, so far as she was concerned, gradually worsened, it is likely that the plaintiff’s recollection of detail is less than it might otherwise have been. It was understandable that her recollection was less than precise about the particular lengths of time taken for particular aspects of the consultation. Her husband, Mr Robinson, was a witness whose evidence was given in a completely straightforward manner and he struck me as a particularly reliable witness. The precise scope of the plaintiff and her husband’s recollection was not fully explored in cross-examination. Counsel for the defendant fulfilled his obligations for the purposes of the rule in Browne v Dunn by very clearly putting the defendant’s version of events to each witness. However, when that version of events was denied he did not explore with the witness the precise nature of the recollection as to what had occurred. This left the contrast between the evidence given on behalf of the plaintiff and that given on behalf of the defendant at its most stark.

The defendant made detailed submissions as to the plaintiff’s credit. The effect of those submissions was that the plaintiff’s evidence was either unreliable or untruthful on a series of issues, principally relating to her past medical history. I have considered each of those criticisms of the evidence. Most of the criticisms of her evidence related to matters of detail which were not significant in my overall assessment of the reliability of her evidence or involved cross examination which did not, in my view, clearly expose any unreliability or untruthfulness. My strong impression of the plaintiff’s evidence was that she was giving honest evidence to the full extent of her recollection. In so far as there were aspects of the documentary material that she could not recall or were inconsistent with her recollection those matters did not cause me to doubt the reliability of her recollection of what occurred on 29 December 2009 or other aspects of her evidence significant for the purposes of this case. In so far as there were some unexplained aspects of her evidence, such as the actual consequences of prescription of Amiodarone in 2001 which led to her commencing proceedings in 2003, the evidence that she gave in chief and the manner in which she was cross examined meant that the evidence was left in a state which did not significantly impact generally upon the plaintiff’s reliability or honesty.

Each of the witnesses called by the defendant appeared credible in the witness box. The defendant had sat through the whole of the evidence in the case prior to giving evidence. He gave evidence in an impressive manner, being clear in the detail and sequence of events that occurred on 29 December. He tolerated a long and contentious cross-examination. He answered long, forensically targeted questions with politeness and precision. His capacity to do so was impressive. His evidence was not shaken in cross-examination. He fairly conceded that in relation to one issue, namely, as to whether or not the plaintiff had signed his clinical notes, that up to the day on which the plaintiff gave evidence his recollection was mistaken.

I did, however, get the strong impression that his evidence was based on a very careful and intelligent reconstruction of what had occurred based on the available clinical notes and his recollection of what was likely to have occurred. The precise sequence of events given in his evidence went beyond what it appears that any professional person would actually recall and extended to matters of usual practice which were given as evidence of what actually occurred. Some of the matters which he purported to recall were said to have occurred at a number of different points in the consultation, for example, a number of references to the plaintiff having self medicated with antibiotics. That reconstruction was one which, through its apparently detailed recollection, was one which emphasised matters that were favourable to the defendant’s case.

The events on that day have clearly been matters of concern for the defendant since they occurred. The defendant recognised at the end of the day that what had occurred was the most significant event of his career up to that point. Having regard to what occurred, he realised that there was, at the very least, going to be a claim on his insurance. He had read the reports of Drs Snars and Kingon. He had sat through the whole of the evidence of the trial and participated in one or more conferences with counsel. In the light of that history it is unsurprising that he was reconstructing events that occurred four years ago. My impression from the defendant’s evidence was that he was overemphasising the extent to which the plaintiff insisted on him continuing the procedure and the extent to which he had made clear to her his view that the procedure should stop and she should be referred to another surgeon.

The defendant’s evidence was that during the course of the consultation, prior to things going badly wrong, he had completed his clinical notes up to the reference to the plaintiff consenting. Clearly the defendant did not record the matters subsequent to the reference to the plaintiff consenting, which included details of the events during the procedure and before the procedure commenced. The terms of the entries related to the procedure are clearly inconsistent with him having done so. I consider that the defendant’s evidence as to what he had recorded prior to commencement was based on a reconstruction. It appears to me to be more likely that the paragraph referring to possible problems with the roots, moving between rooms and consent was added after the procedure had concluded when the defendant knew that there had been problems with the roots and the need to work between rooms. Although any assessment is made more difficult by the fact that other patient cards were not put into evidence, it appears to me to be unlikely that the defendant would have recorded in his clinical notes (a) that he had informed the plaintiff of the need to work between rooms or (b) that he would have recorded so informing the plaintiff “before procedure start”. There appears little or no clinical point in recording procedural matters such as that at all. However, there would be better reasons, after the procedure had gone wrong, to record, defensively, explanation of unusual aspects of the consultation. In relation to the reference to informing the patient “before procedure start”, had the defendant in fact recorded it before the procedure started he is unlikely to have recorded when he so informed her. However, if written after the procedure went wrong there would be a good defensive reason for doing so.

There was nothing about the evidence of Ms Seisun or Ms Bubear that cast doubt on the honesty of the evidence. While the reliability of Ms Seisun’s evidence is supported by the fact that she considered the events on that day to be well and truly out of the ordinary, I did get the impression that to some extent her evidence had been reconstructed based on the clinical notes and what she thought ought to have occurred having regard to the unfortunate outcome of the consultation. That was particularly so in relation to her purported recollection of the nature of the warnings given to the plaintiff prior to commencement of the procedure.

Ms Bubear’s evidence was clearly based on that which she recorded in her dot point note. That note was obviously produced at a time when it was clear that there might be further consequences for the defendant and the practice arising from the defendant’s treatment of the plaintiff on 29 December. Her understanding of events is likely to be influenced by what was reported to her at the “debrief” after the plaintiff had left. However, the nature of the note, namely, its matter-of-fact dot point recollection of what occurred, does not give the impression of being subject to a defensive bias.

Conclusions as to what occurred on 29 December 2009

The consultation commenced at 2:45 pm and ended at around 6:00 pm. Having regard to the need for an initial examination and x-ray it is likely that there was approximately 20 minutes prior to the commencement of the extraction. Having regard to the transactions after the tooth root was pushed through the sinus the Third X-ray was taken at approximately 5.30 pm – 5:40 pm. Therefore, the time taken in the attempted extraction is from 3:05 pm to 5:30 pm – 5:40 pm (2 hrs 25-35 min) from which needs to be deducted approximately 45 minutes in dealing with other patients, a total of approximately 1 hour 40-50 minutes. The alternative method of assessing the time taken in performing the extraction is to add up the time taken for individual components of the process. This has a greater potential to generate errors in the estimation of the time taken for numerous individual components of the procedure. However, even based on this method, using, where possible, the defendant’s time estimates, the time taken in the procedure is between 1 hour and 7 minutes and 1 hour and 24 minutes.

The different versions of events are starkly different. The plaintiff’s version involved a drawn out attempt at extraction during which the plaintiff became more and more worried about the capacity of the dentist to achieve his goal. She considered walking out during the interval when the defendant went to treat other patients. She denies being referred to anybody else. She records that the defendant sounded quite confident when he spoke to her.

On the other hand, the evidence called by the defendant paints a completely different picture of the consultation:

(a)a patient presenting and reporting self medication on antibiotics;
(b)the defendant advising at the outset that he did not undertake “surgicals” and that if the crown broke he would need to refer her to an oral surgeon;
(c)the crown does in fact break and he indicates the need for referral;
(d)the patient refuses to leave the surgery and insists on further treatment;
(e)the dentist treats other patients while hoping the plaintiff will accept his advice to cease the procedure;
(f)the patient refuses the further entreaties by the doctor that would permit him to stop and refer her to a surgeon;
(g)the patient is both panicky (as recorded in his notes) yet at the same time very “aggressive” and “pushy in her demands” (as recorded in his letter to his insurer);
(h)the patient tells the doctor that he should perform a buccal flap procedure that she, as a vet had performed on dogs or horses;
(i)the patient further offers to instruct him step by step on how to perform the surgical procedure while he is performing the procedure inside her mouth.

Looked at overall, the version of events put forward in the defendant’s case is of a bizarre interaction with a person who, on the defendant’s evidence, was making strange and unreasonable demands upon the dentist. The dentist, notwithstanding his constant warnings to the plaintiff and his significant concern about the risks of proceeding further (a) does not clearly explain the risks about which he is increasingly concerned and (b) continues to pursue extraction.

In my view it is likely that prior to commencing the extraction the defendant did give a generalised statement of the risks that were involved in an extraction. He may have made specific reference to the potential for there to be a communication with the sinus but he did not explain to the plaintiff the significance of that or the serious complications that might arise if it occurred. The defendant did not explain to the plaintiff that the risk of a communication with the sinus would be less if the procedure was undertaken by an oral surgeon or by a general dentist experienced in oral surgery. I think that it is unlikely that the defendant would have emphasised his limited experience and, being faced with a patient who clearly favoured an extraction, was likely to reassure the patient and emphasise his own competence to perform the procedure.

I consider it likely that the defendant recognised, prior to the commencement of the extraction, the potential for the tooth to fracture and the need to consider a referral if problems emerged. He is likely to have mentioned that as a possibility to the plaintiff although not in as forceful or direct a manner that he might have wished to with the benefit of hindsight.

After the crown had broken I am satisfied that sometime between that point and the time when the defendant left the room to attend to other patients the defendant at least mentioned the possibility of a referral for completion of the extraction. I am satisfied, having regard to the evidence of Ms Bubear that the plaintiff declined that offer and indicated that she wished him to extract the tooth. I am not satisfied that there was any explanation other than at the most general level of the risks of continuing or of the reduced risk of complications if the extraction was carried out by someone with greater surgical experience. I accept the plaintiff’s evidence that the effect of what the defendant did was to reassure her about his capacity to extract the tooth.

I accept the plaintiff’s and Mr Robinson’s evidence that by the time the defendant left to treat other patients the plaintiff’s confidence in the capacity of the defendant had evaporated and that she discussed with her husband the possibility of leaving. That is consistent with the note of Ms Bubear that when she checked on the plaintiff she was “agitated” although not in pain and that the plaintiff was “panicked” as recorded in the defendant’s notes. Because I accept the plaintiff’s evidence about this I do not consider that it is appropriate to characterise her attitude as involving a “refusal” to leave. I also accept Mr Robinson’s evidence that Ms Seisun was not in the room with them while waiting for the defendant. This was consistent with the plaintiff’s evidence and with the recollection of Ms Bubear whose oral evidence and notes made in January 2010 were that the plaintiff and her husband were left in the room and she checked on them on one occasion. Ultimately Ms Seisun was not sure of her evidence as to where she had spent the time and the defendant’s evidence recognised that at least for a short period Ms Seisun was assisting him in another room.

In relation to the evidence concerning the reference by the plaintiff to the buccal flap procedure, there is no reference to it in the clinical notes. There is an oblique reference to a procedure performed on dogs in the defendant’s letter to his insurer. There is at least a good chance that had the interactions occurred as described by the defendant he would have recorded it in his contemporaneous notes. The suggestion that the plaintiff told the defendant that she would guide him through the process is, in the circumstances, bizarre. However, both Ms Seisun and the defendant gave that evidence. I do not consider it likely that both Ms Seisun and the defendant have completely fabricated the reference to the buccal flap. In those circumstances it is likely that there was some reference during the course of the consultation to the buccal flap operation, most likely in the context of the plaintiff expressing dissatisfaction or concern at the progress of the procedure. That would be consistent with the lack of confidence she had by then in the defendant’s performance and the long and stressful procedure that she had been subject to. However, I do not accept that the plaintiff during the middle of the procedure in effect offered to take over the tooth extraction, turn it into a surgical procedure and give step-by-step instructions to the defendant as he carried out the operation on her. As a consequence I do not accept the defendant’s or Ms Seisun’s evidence on this point.

I accept the defendant’s evidence that at some stage of the procedure he raised the possibility of a referral and used the phrase which he gave in his evidence that he did not want to do more harm than good. Even accepting the defendant’s evidence, he made only a brief reference to the possibility of creating a communication with the sinus at the beginning of the consultation. He then subsequently made only a reference to his desire not to “do more harm than good” and not to create “too much trauma”. He did not give any explanation to the plaintiff of increase in the risk associated with continuing with the extraction or give any explanation why, on his version of events, he had formed the view that it was necessary to refer her to a surgeon. He did not explain to her that the risks associated with continuing were greater than if the extraction was completed by a more experienced surgeon. Some of this might be implied from his desire to refer the plaintiff but even on the defendant’s purportedly detailed recollection, none of it was explicit. There was no explanation that the risk of a communication was in his view too high or of the consequences that might result from the creation of a communication, namely the necessity for significant invasive surgery.

Had there been any clear explanation of the desirability of the plaintiff of a referral after the defendant returned from his other patients it is likely that there would have been a discussion about that issue involving Mr Robinson. Having regard to the plaintiff’s and Mr Robinson’s evidence, which I accept, to the effect that the plaintiff discussed the possibility of leaving but that Mr Robinson encouraged her to stay, had the dentist given any clear advice or recommendation that it was more appropriate for another surgeon to complete the extraction I think it is likely that the suggestion would have been taken seriously and supported by Mr Robinson. I therefore do not accept the evidence of the defendant or Ms Seisun that the defendant clearly indicated that in his view the procedure should stop and a referral should be made.

Was the treatment negligent?

Allegations

The plaintiff has pleaded her claim in contract and in tort. The evidence as to the entity with which the plaintiff contracted on that day was not clear. The claim in contract included allegations of some very specific implied terms. As I pointed out above, no submissions were directed to the contract claim.

In those circumstances I will address the alleged breach by the defendant of his duty of care. While there were a variety of particulars of negligence identified, the principal way in which the claim was put was that the defendant should not have continued attempting to extract the tooth after the Second X-ray and should at that point, if not earlier, have referred the plaintiff to an oral surgeon or experienced general dentist to complete the procedure.

Expert Evidence

The plaintiff led evidence from Dr Stephen Snars, a general dentist of 33 years experience. She also led evidence from Dr Angus Kingon, an oral surgeon. There was evidence that the defendant had commissioned reports from Dr Peter Vickers, an oral surgeon and Bruce Austin, a maxillofacial surgeon. Neither of those reports were served and the defendant led no expert evidence.

Dr Snars

Dr Snars prepared a written report dated 23 January 2012. In that report he said that if an extraction by an emergency dentist was the chosen option it would be expected that the practitioner would give the patient a view on the degree of anticipated difficulties and what those difficulties could lead to. The patient and practitioner could then agree on whether to start on the spot or at what point the attempt may be terminated. He recited a number of possibilities that would need to be warned of including, fracturing of the crown, the need for surgery, the risk of exposing or invading the maxillary sinus, post-operative pain, swelling, infection, loss of biting platform, over eruption or drifting of other teeth and the need for eventual replacement of the missing tooth. He said those warnings were essential because such complications do happen. If the patient’s prime motivation is pain relief then treatments with a higher risk factor and a probability of pain continuing in the short term are best avoided by a competent and prudent dentist in the favour of less invasive procedures. He said he would expect a competent dentist in general practice to make each patient aware of all ways of dealing with such an emergency and deferring ultimate decisions where possible.

In relation to the First X-ray Dr Snars said that a reasonable and competent practitioner would have expected “a distinct possibility that extraction… even if managed simply ran a significant risk of a communication being created between the oral cavity and the sinus”. He said that the Second X-ray showed the risk of intruding the root into the sinus had increased since the First X-ray because “applying extractive forces to the broken root without applying the sort of pressure that may push it towards the sinus is very difficult”. He said it was also suggestive that “unless the root was loose in its socket that the completion of the procedure would be difficult and probably needing a surgical approach (i.e. raising a flap of gum tissue and more extensive bone removal).” He said “I believe that most competent and prudent dentists would have stopped at this point and referred further treatment to an Oral Surgeon.”

Dr Snars said that the time taken for this procedure indicates it was a very difficult extraction and “[r]egardless of time once the situation in [the Second X-ray] had arrived, it would be reasonable for a competent and prudent practitioner to defer treatment for completion by a specialist.”

In relation to the break in the treatment he said:

I can’t see how it was in the best interest of the patient to leave her for 45 minutes even if she had been forewarned. It would have been more expected practice to re-book the other patient, or given the lack of progress with the extraction to place a sedative at the point when the crown fractured. It is at this point I believe most reasonable and competent dentist’s faced with the same situation would have decided it would have been in the patient’s best interest to do so at this point or sooner.

He said in relation to when the tooth broke:

... if the tooth broke “cold” i.e. with no movement of the tooth within the socket, this would be the first indication that the procedure may not be concluded simply in regards to time, effort and the need for a surgical approach. This may have been anticipated as a distinct possibility, but also represents an opportunity to back out of the situation.

He also said that,

At the time of the second fracture of the tooth most prudent, competent and experienced dentists would have seriously considered stopping and referring the patient … The question of timing the cessation of treatment then returns to the original preoperative discussion between dentist and patient re the expectations for the extraction. It would be expected for a practitioner to give a view on degree of anticipated difficulties, and also what these difficulties could lead to. If these warnings are given then the failure to remove the whole tooth while disappointing, cannot be regarded as unexpected. Hence there are also no real grounds for a dentist to “press on regardless” beyond their capabilities. A competent operator should not be embarrassed to defer to a specialist.

He said that in this instance the proximity of the maxillary sinus and the risk of opening a communication or intruding a root would be an expected warning prior to commencing an extraction. It would not be regarded by a competent and reasonable dentist as normal practice to interrupt a procedure such as an extraction for the purpose of seeing another patient.

He said:

I believe a prudent and competent practitioner would not have continued with the extraction as it appeared in X ray 2 taken at 5.15pm, not wishing to run the risk of intruding the root into the sinus. However I also expect that most prudent, competent and experienced dentists would have stopped before this point given that I would not have wanted to persist much after the first fracture, not wishing the patient to endure a long arduous procedure with a doubtful outcome.

He said at the conclusion of a complicated surgical procedure it would be normal and competent to prescribe antibiotics and analgesics. The fact that the plaintiff was a veterinary surgeon did not affect this obligation. He considered that the fact that a root portion was pushed into the sinus would definitely increase the risk of infection developing in the sinus and hence the need for warning and antibiotic cover until rectification via an oral surgeon.

He considered that had the entire procedure been carried out by a surgeon the likelihood of the root being intruded into the sinus and Mrs Robinson developing post-operative infection would have been significantly less.

His report concluded:

A misadventure such as this can only be avoided with an admission of limitation of expertise by the operator. This should not be an embarrassment for a competent and reasonable practitioner, just a statement of fact. It is impossible to say whether anyone else could have solved this problem simply. I believe a competent operator would have shown extreme caution in the removal of the tooth once it had broken inside the alveolar socket. That caution for many would involve stopping the procedure and referral to a specialist. For others, more practised in surgical procedures, continuation with the procedure would be with a full surgical approach avoiding any upward pressure on the root.
My opinion is that the majority of reasonable and competent dentists would have stopped and referred Mrs Robinson to an Oral Surgeon before the misadventure took place. I believe decisions, procedures and omissions made by Dr Ng and detailed above would not have been regarded as competent professional practice by his peers and further that his decisions to continue with the extraction beyond the time the second x ray was taken was the ultimate cause of the subsequent problems suffered by Mrs Robinson.

Oral evidence

Dr Snars gave oral evidence and was cross-examined. His evidence was as follows.

Having regard to the First X-ray there was a definite potential for the tooth to break during a normal extraction procedure. He considered that only light to moderate force should be used and if more than moderate was required to achieve lifting of the tooth a proper surgical procedure would be indicated. If little movement could be established in the first 10 minutes of the use of an elevator then alarm bells would be ringing and well before 30 minutes a reasonably competent dentists would be thinking that a surgical procedure was appropriate.

After 30 minutes of attempting to achieve movement using the elevator and forceps and an attempt at resection, buccal flap surgery was an option. It is common for dentists not to perform that procedure, but if referred to a maxillofacial surgeon then it would be possible to make the patient comfortable while awaiting referral through the use of analgesics and antibiotics. If appropriate measures were taken he expected that this would leave the patient comfortable for a period of some weeks.

Dr Snars was of the opinion that the defendant should have referred the plaintiff at the time of the Second X-ray to an oral surgeon. He said that following the Second X-ray the risk of penetration of the floor of the sinus was high.

Even if the patient said, “I don’t care, continue with the extraction” a competent dentist would note the patient’s request but also deny that request if the dentist thought that the risk outweighed the benefits of continuing. He was of the view that in this case the risks “absolutely” outweighed the benefits. He said patients in pain frequently make rushed decisions and will more often request extraction thinking that the problem will be solved faster with less complications.

He said that assuming the plaintiff had said something like, “just take the thing out anyway” the duty of the dentist was to assume responsibility and advise the patient that she may be far worse off if the extraction process goes wrong than if the procedure was stopped and she was referred to a specialist.

In cross-examination it was suggested to him that if the patient said that she wanted “the damn tooth out” it was reasonable for the dentist to attempt to comply with plaintiff’s wishes. Dr Snars did not accept that. He said that the patient was not the decision maker and that despite what the plaintiff wanted, a reasonably competent dentist would have immediately stopped after the Second X-ray and not proceeded to any further dental treatment. Although it was suggested to him in the course of cross-examination that he was applying a “gold standard” he denied this and in re-examination made it clear that the standard he was applying was that:

... expected by every regular general practitioner dentist, whether they are operating Monday to Friday - weekends out of hours or at any time. That the standard of care to the patient should be the same under any circumstances.

Dr Kingon

Dr Kingon is an oral surgeon practising in Sydney. He prepared reports dated 29 June 2011 and 24 March 2012. In his first report he was to give his opinion on various questions based on the standard of an ordinary skilled dentist exercising and professing to have those dentistry skills in 2009.

He concluded that the time taken for the procedure was unacceptable and the defendant should have called for help earlier. He considered that it should have been possible to remove any tooth inside 30 minutes allowing a maximum of 40 minutes. He said that anything longer than that was very tiring to the patient and may not be an acceptable level of care. If those times could not be achieved then the most appropriate person to refer the patient to was an oral and maxillofacial surgeon. He did contemplate the possibility that if the tooth was taking longer than 45 minutes it might be appropriate to continue if the patient requested it.

He was also of the opinion that the break taken to see another patient in the middle of the treatment was unacceptable. That was particularly so in circumstances where the extraction was more complicated than anticipated.

After the crown broke, the appropriate management was to cease treatment, explain what had happened, devitalise the tooth by removing the nerve and placing a sedative dressing on it and referring the patient to the appropriate person to complete the procedure.

He was asked: “in your opinion did [the defendant] act in a manner that in 2009 was widely accepted in Australia by peer professional opinion as competent professional practice. If not, why not.” He answered:

Regrettably, my opinion is that the defendant did not display competent clinical practice. The main criticisms are not aborting the procedure earlier, and going to see another patient in the middle of the procedure, leaving a distressed patient effectively in limbo.

In his supplementary report dated 24 March 2012 he expressed agreement with the report of Dr Snars. He said that if the defendant had terminated the procedure earlier it is significantly less likely that an abnormal communication between the mouth and maxillary sinus would have resulted. The prospect of a perforation in the membrane between sinus and mouth was much less likely to occur the more skilled the operator. He said:

.. if there had been a referral at any point after the first 30-45 minutes when it had become apparent that the extraction was more difficult than anticipated, the chances of the severe complications which arose during this course of treatment were negligible: possible, but highly unlikely.

He said that the chance of infection was higher than it would have been had the procedure been undertaken relatively quickly and efficiently by an oral surgeon. He said:

I do not criticise Dr Ng for failing to remove the tooth, and assessment of a dental extraction can be difficult for a general dental practitioner. An Oral Surgeon (with the additional training) is much less likely to have broken the tooth root. In general, it is probably fair to say that if a tooth does not come out with moderate pressure, there is usually something obvious preventing it. That is why, in my opinion, better clinical judgement by Dr Ng, with respect to termination of the procedure earlier and referral to an oral surgeon, ideally prior to the communication occurring, should have been displayed. If the procedure had been aborted at an earlier point, it was much less likely a communication would have been caused and there was little, if any, likelihood the subsequent complications suffered by Mrs Robinson would have occurred. I am highly critical of Dr Ng’s conduct in the way he treated Mrs Robinson, and his failure to have taken appropriate consideration of what she was going through. It shows significant lack of insight into fundamental healthcare concepts of treating people humanely and with dignity.

Dr Kingon gave brief oral evidence in chief consistent with the terms of his report. In cross-examination he was asked to assume that after the Second X-ray the patient had said, “no take the damn tooth out I want it out” and that the services available in the dental profession were limited between Christmas and New Year. The following then appears:

In those circumstances it’s reasonable is it not for Dr Ng to have continued to try and please or meet the demands of the plaintiff, and try to get the tooth out?---That is quite reasonable because this is a perennial problem in dental/oral surgical practice people aren’t around in ‑ specialists often aren’t around in the holiday period to provide that backup as they would outside holiday time.

The issue of how long it would be appropriate to continue was not explored. In re-examination Dr Kingon was asked, based on effectively the same assumptions, “at what point do you call it a day, having regard to the duty of care owed by a dentist to his patient?” His answer was quite long but said that it “has to be the call of the practitioner who is performing the procedure.” In answer to a subsequent question as to when it would cease to be reasonable to continue he said that he “felt that an hour is a reasonable time which to try and remove a tooth. The second point was where the practitioner concerned has to be honest with themselves and say, “am I going to be able to remove this tooth?”” In relation to the one hour maximum he subsequently added “if there is an agreement between dentist and patient that goes beyond that time, well, in certain circumstances, who am I to say that it shouldn’t?”

The effect of his oral evidence is less critical of the defendant’s conduct than his report although this apparent difference was not explored in the oral evidence that he gave.

Conclusion

Dr Snars was the only independent general dentist who gave evidence of the standard of care that could be expected from a reasonably competent general dentist when treating the plaintiff. His evidence was that the defendant should have ceased his attempted extraction no later than at the point when he examined the Second X-ray. I accept his evidence, In particular, I accept the following matters.

(a)The location of the tooth, the breaking of the crown and the absence of movement in the remaining root indicated that by the time of the Second X-ray the risks of the defendant continuing with the extraction outweighed the benefits.
(b)The defendant continued the extraction in circumstances where a reasonably competent general dentist would have recognised that the risks associated with continuing were significantly greater than if the plaintiff was referred to an oral surgeon.
(c)Notwithstanding the expressed wishes of the patient, it is the dentist that remains in control of the procedure and whether or not it is pursued. That is of particular significance where a patient who has suffered significant pain prior to attendance and a long and difficult extraction. The desire of the patient to have the process successfully completed does not compel or justify a dentist in continuing to persevere when the risks outweigh the benefits.

I accept Dr Snars’ evidence that at the time of the Second X-ray the defendant breached his duty by not ceasing to treat the plaintiff and referring her to an oral surgeon or a general dentist with experience in oral surgery.

Dr Kingon’s evidence, even as apparently qualified in cross-examination, also indicated that the defendant had breached his duty. His oral evidence extended the time that it might be reasonable to continue to up to an hour. On any view of the timing of the present procedure it extended beyond that time. I did not understand Dr Kingon’s answers given in cross-examination or the answer in re-examination which appeared to contemplate longer periods by agreement or because of holiday periods to fundamentally alter his earlier expressed opinion. If those statements were intended to qualify his earlier expressed opinion then I would not accept that opinion as indicating that there was no breach of the defendant’s duty of care in the present case. While it might, as a matter of theory, be open to a completely informed patient with full appreciation of the risks and benefits to authorise a dentist to continue a procedure in circumstances where the dentist considered it more appropriate that a more experienced practitioner complete the procedure, the evidence in this case does not even approach such a situation. My acceptance of the plaintiff’s and Mr Robinson’s evidence is inconsistent with there being such an appropriately informed and considered decision by the plaintiff. Even on the defendant’s version of events the plaintiff was not in a physical or emotional condition to make such a judgment and any reasonably competent dentist would, in the circumstances, have been aware of at least the risk of that being the case. The defendant was actually aware that the plaintiff was in what he perceived to be a “panicked” state. In any event, even on the defendant’s version of events there was never the kind of clear and comprehensive explanation of the dentist’s concerns about proceeding, but instead only oblique references to “not doing more harm than good” or not causing the patient “too much trauma”. Similarly, while it might, in some circumstances, be reasonable for a dentist to persevere because of the unavailability of more specialist dentists or oral surgeons, the circumstances of this case demonstrated no pressing need to continue or any significant problem with getting access to specialist dentists or oral surgeons within a reasonable time. It was Christmas in Canberra, not a location remote from dental services.

It is not clear when the plaintiff applied for or developed an interest in the job of a District Veterinary Officer. The plaintiff’s evidence was consistent with her having applied after 29 December 2009 although it was not clear that that indeed was the case. When working at the LHPA had the plaintiff not been suffering from increasing pain as a consequence of the operation and the development of osteomyelitis, it is likely that even if she was not ultimately going to pursue the role of a District Veterinary Officer she would have kept at the job for a longer period. It is clear, in retrospect, that a very significant factor in her decision to leave the job when she did was the fact that she was suffering increasing effects of osteomyelitis. Therefore, at least in this initial period it is appropriate to assess damages on the basis that she continued in employment that she had commenced. In the period after that the issue is how to balance the chances of her staying in that employment as opposed to pursuing her goals in private practice and, so far as private practice is concerned, what would be the likely economic loss had she pursued that course.

As indicated above, she employed her husband, Harry Robinson, in her private practice. He assisted her with some of the larger or more difficult to manage animals. She paid him an hourly rate for the work that he performed. Those payments were characterised as “consultant expenses” in the plaintiff’s accounts.

The defendant points to the fact that the plaintiff paid $35,623 to her husband in the financial year ending 30 June 2010. That amount equates to a weekly figure of $685 gross or $595 per week net. He submits that this amount could be taken as the earning capacity of the plaintiff at the time of the accident although having regard to the previous years’ earnings an average figure for the period would be around $500 net per week. That methodology fails to take into account that the $35,623 paid to Mr Robinson was only at the price of the plaintiff suffering a loss in FY2009/10 of $12,229 or, if the income from the LHPA in 2010 is not taken into account, $23,819. If the amount paid to Mr Robinson is taken as the earning capacity of the plaintiff, leaving out the LHPA income brings the plaintiff’s earnings down to around $11,804 for the equivalent of six months from June to December 2009 ($35,623-$23,819), that is, the period prior to 29 December 2009. Extrapolated over a full year would give net income of $23,608. That figure would also involve an underestimation because the $11,804 figure already incorporates some full-year expenses such as depreciation, car registration and insurance, car repairs and maintenance and accountancy fees. Recognising those inaccuracies, if the full-year figure of $23,608 is adopted it gives a figure of $454 per week gross, $425 net.

However, this approach fails to take into account the fact that the plaintiff was still in the establishment phase of her practice as a vet. She commenced her own practice in 2006 although for between 2006 and late 2008 she was principally working as a locum vet rather than building up her own private practice. It is only from 2008 that her financial records indicate a concerted effort to establish her private practice. She was still a relatively recent graduate and had the capacity to increase her client base over time and with increasing experience. There is no evidence as to her likely earnings if she continued in private practice in the manner that she had or if, as she had hoped to do, she established a veterinary surgery at Binalong. However, I am satisfied that it would have been in excess of a net income of $425 net per week. Because the plaintiff was likely to not utilise her earning capacity in a manner that maximised her income and there was no evidence of the earnings of vets in private practice equivalent to that which she hoped to establish, there is a very significant degree of uncertainty about the loss generated by her loss of earning capacity. However, doing the best that I can and having regard to the amounts that she had demonstrated she was capable of earning in private practice as well as the amounts that she had demonstrated she could have earned as a District Veterinary Officer. I assess her economic loss arising out of her loss of earning capacity as being $800 per week net. That is almost double the figure derived from the financial year ending 30 June 2010. It also reflects the chance that the plaintiff would, but for the accident, have continued as a District Veterinary Officer or its current equivalent, in which case her income would have been substantially higher, between $74,000 and $115,000 per year, equivalent to $1094 and $1580 net per week respectively. If private practice did not yield her an income approaching $800 net per week (approximately $50,000 gross per year) then it is more likely that, notwithstanding her desire to do clinical work, she would have been attracted by the financial rewards of working as a District Veterinarian Officer or its equivalent. My assessment of the likely amount she would have earned in private practice is influenced by my assessment that she would be determined to work hard and make her private practice succeed.

In terms of her present earning capacity, her evidence is that she now works two days per week, 4 to 5 hours per day with an occasional emergency call-out. She does not organise to work two days in a row. Her evidence was that previously she would work five or six days per week, up to 14 hours per day. On top of her restricted hours there is also a loss of income associated with the inability to be reliable, consistent and available for clients, the fixed costs associated with being in business such as insurance and accountancy fees and the costs maintaining her vehicle and x-ray machine. Having regard to her turnover in the financial year ending 2013 and the level of income demonstrated in her most recent business activity statement, which is consistent with a total turnover of around $34,000 per year, it is unlikely that she generates any net income. Therefore I assess loss of earning capacity on the basis of $800 per week.

The defendant did not plead that she had or was failing to mitigate her loss.

In the financial year ending 30 June 2010 the plaintiff was earning $954 net per week at the LHPA. Had she not been suffering the ill effects of osteomyelitis it is likely that she would have continued with this employment for at least another two months, even if she ultimately decided that it was not for her. Having regard to her medical condition upon leaving the job it is unlikely that she earned any net income in the balance of the financial year. Therefore up to 30 June 2010 I assess her loss of income from 30 April 2010 as $8,261 (8.66 weeks at $954 per week).

From the commencement of the 2010 financial year I assess her loss on the basis of an earning capacity likely to have generated $800 per week. Although if she had continued in private practice she may not have been able to achieve $800 per week immediately (perhaps taking another two years to build up to that level), that is offset by the chance that she may have continued with the LHPA and earned substantially more than that during the same period.

In the years ending 2011, 2012, and 2013 the tax records disclose that in fact the plaintiff made an overall loss in those years because the amounts paid to her husband (a total of $26,633) were exceeded by her net taxable income (a total loss of $42,127). Therefore, I assess the plaintiff overall on the basis that she made a loss of $15,494 ($26,633 ‑ $42,127) in those years, which she would not have lost if the incident on 29 December 2009 had not occurred.

The plaintiff’s lost income is $800 net per week for 4.33 years (July 2010 to October 2014). This gives $180,128 (800x4.33x52). Adding the amounts lost from financial year ending 2010 ($8,261) and the losses in the years 2011-2013 ($15,494) gives a total for past loss of income of $203,883. Interest on this amount is $35,547.

In relation to the future, because she was a late starter at veterinary practice it is likely that she would have continued working, if she was able, until 67. That gives a loss of $352,000 (9.66 years multiplier 440, $800 per week). Having regard to the physical requirements of the job and the evidence of the plaintiff’s previous difficulties with her back (illustrated by the terms of the referral letter to Dr Chang in May 2007: Ex 18) a greater than usual allowance for vicissitudes is warranted. Further, the age of her husband is a factor which may have caused her to cease work prior to 67 years of age. Taking these factors into account an allowance for vicissitudes of 25% is appropriate. This gives a figure for future loss of income of $264,000.

Superannuation

Past and future superannuation is claimed at the rate of 11% of net earnings. As the plaintiff was self employed and I have generally awarded damages on the basis that she was most likely to have remained so, her loss should not include superannuation. Consistently with my award of damages for the past based on continuing employment with the LHPA in financial year ending 2010 I award 11% of $8,261 namely $909 for the past. In relation to the future I have awarded damages on the basis that she remained self-employed but with the chance that she might have returned to government employment. In my view, given the uncertainties in arriving at the economic loss figure I make no separate award for that loss of a chance that she may also have become entitled to superannuation by reason of returning to employment.

Past out-of-pocket expenses

Past out-of-pocket expenses were agreed as follows:

(a)$20,130 for general out-of-pocket expenses including medical expenses; and
(b)$5,783 for expenses arising out of the use of her vehicle for the purposes of the plaintiff attending medical appointments in Canberra.

This gives a total of $25,913.

Many of the medical expenses incurred appear to be matters that would be subject to a Medicare rebate and hence may not represent money actually paid out by the plaintiff. The parties did not indicate that there was any agreement about whether or not interest should be awarded. I will hear the parties as to whether any award of interest should be made and, if so, its amount.

Future out-of-pocket expenses

The plaintiff claimed damages for the costs of:

(a)future review by her general practitioner;
(b)radiology or pathology testing;
(c)medication; and
(d)psychologist appointments.

I will deal with each of these in turn.

General practitioner review: The plaintiff submits that she needs an appointment every three months to deal with her ongoing condition and the need to obtain prescriptions for medication and referral for specialist review. She claims $256 per annum to accommodate four visits each year for the rest of her life. The defendant submits that no more than two visits per year should be allowed.

I will allow four visits per year for a period of 10 years which appears to me to be reasonable amount having regard to the nature of her ongoing condition. After a period of 10 years that period the plaintiff will be 67 years of age and it is not sufficiently clear to me that the conditions caused by the accident will require additional general practitioner visits beyond those that unrelated conditions might require. This gives a figure of $2,223 ($4.92 per week, multiplier 451.8).

Radiology/pathology: The plaintiff submits that she will require access to radiology and/or pathology to monitor and treat the conditions relating to the accident. The plaintiff refers to the possibility of the recurrence of the osteomyelitis infection and the need for antibiotic therapy. The defendant submits that $60 per annum should be allowed, if anything, for the future cost of radiology/pathology.

The need for radiology or pathology was not the subject of specific evidence. Further, there was no evidence as to the likelihood of the recurrence of osteomyelitis. Such a recurrence may make a substantial difference to the requirement for radiology or pathology. The total claim made by the plaintiff is for the sum of $2674. In the absence of evidence about this matter I make an award more consistent with the defendant’s submission but by way of a buffer of $1500.

Medication: The plaintiff submits that it is likely that she will need to consume analgesics and anti-inflammatory medication as well is medication to counteract the effect of analgesics. The plaintiff relies upon Dr Le Leu’s estimate that the plaintiff’s consumption of medication is $2000 per annum. On this basis the plaintiff claims amount in excess of $40,000.

The defendant submits that the plaintiffs cost of medication would not exceed $500 per year given the cost of medications she claims were being used by her prior to the incident and continued to be used to treat symptoms unrelated to the incident.

The basis for Dr Le Leu’s opinion as to the cost of medication, which equates to a cost of $38 per week, was not made clear. The regime of medications beyond analgesics being taken by the plaintiff was not made clear in the evidence nor was their cost. It is clear that the plaintiff has in the past avoided tricyclic antidepressants, neurontin and lyrica because of their adverse affects on her capacity to work. In my view, having regard to the plaintiff’s drive to keep working and general stoicism, her medication usage is likely to be minimised. In those circumstances I will award the plaintiff a buffer to take into account future medications of $8,700. I have calculated that buffer as approximately equivalent to $1000 per year for a period of 10 years as I am not satisfied that the evidence warrants future medications causally related to the incident for the rest of her life.

Psychology: The plaintiff claims the cost of a treating psychologist to counter the effects of circumstances such as a relapse of osteomyelitis, severe bouts of neuropathy, anxiety or depression surrounding the restrictions on her work and the activities of daily living. She claims two one-hour sessions at $175 per appointment over a 12 month period totalling $4,550. The defendant submits that based on her evidence the plaintiff should receive no award of damages for future psychology sessions.

The plaintiff was treated in 2011 by a clinical psychologist over seven sessions. This very modest amount of assistance is reflective of the stoicism and resilience of the plaintiff. In my view, having regard to the uncertainties surrounding her prognosis in the future and how her pain condition will affect her mental health in the future it is appropriate to award a buffer equivalent to the cost of the number of psychology sessions undertaken in the past. This gives an award of $1,225.

Therefore, the total award of damages for future out-of-pocket expenses is $13,648 ($2,223 + $1,500 + $8,700 + $1,225).

Griffiths v Kerkemeyer/Domestic assistance

The parties agreed that in relation to care provided by Mr Robinson the appropriate rate was $25 per hour. The parties also agreed that if care or domestic assistance was to be provided in the future on a commercial basis by persons working within the Bookham area then the appropriate rate was $35 per hour.

Before 29 December 2009 the plaintiff did all of the housework. In total the housework took 2 to 3 hours per week. In the garden, the plaintiff was responsible for the weeding. She is now limited by the fact that exertion involving bending forward and lifting things is often the trigger for her facial pain. If she engages in squatting or bending forward she finds that she gets a terrible sensation of pressure in her head and pain in the front of her face all on the right side. Her facial pain tends to exacerbate and build and end up as a severe headache on the right side. As a consequence she is limited in what she can do at home. She will get Mr Robinson to carry out the washing basket but will herself be able to hang out the washing. She generally doesn’t do the vacuuming or cleaning the bathroom she doesn’t do the weeding because that involves bending forward and pulling at things over a sustained period of time. She estimates that there was around 2-3 hours of work that she did in the house and more in the garden. She is still able to dust and wipe down the kitchen benches. The plaintiffs evidence was that as a result of her ongoing pain she only does 15-20 minutes and Harry does the rest.

Mr Robinson said that prior to the incident she was primarily responsible for the housework. In the garden the duties were shared. She would do the weeding watering and pruning and he would do any digging or cutting down of trees or heavier work. Following the incident he described the situation as changing “dramatically”. Mr Robinson had to put in a much larger percentage of the time because the plaintiff was sick and weak and could not cope with doing all that work. Anything where she had to bend over would cause a lot of pain. Mr Robinson estimated that he would probably do four or five hours a week that he did not do before. He now does 90% or all of the gardening outside. He said that constituted two or three hours per week. He indicated that in the future they may employ someone to assist in relation to housework. Local people in the Bookham area are available to do those duties.

The defendant’s submission was the plaintiff should receive no award of damages relating to domestic assistance after 14 February 2011. This was based upon the evidence in Professor Bowden’s report typed on that day that the plaintiff was no longer taking any pain relief medication and was able to work without too much difficulty. Notwithstanding the recurrence of pain and further investigations recorded in the subsequent letters of Professor Bowden, the defendant identifies 14 February 2011 as the point at which the plaintiff overcame any causally related difficulties. I do not accept that the pain and headaches and fatigue that the plaintiff continues to suffer from are unrelated to the incident involving the defendant. As a consequence, I do not accept that damages should be limited to the period prior to the date proposed by the defendant.

The alternative submission of the defendant was that future domestic assistance should be assessed on the basis of two hours per week at $25 per hour.

In my view the plaintiff’s estimate of the gratuitous assistance provided by Mr Robinson is likely to be most accurate. In terms of the housework, adopting three hours per week as the amount that was undertaken prior to 29 December 2009, the plaintiff is now only able to perform around 20 minutes of work. Therefore, as a consequence of the incident with the defendant the plaintiff requires 2.6 hours of additional assistance per week. The plaintiff indicated that the 2 to 3 hour figure did not include work in the garden. That work appeared to be weeding work. In relation to that I will allow one hour per week. This is slightly less than Dr Le Leu’s estimate of 3 hours per fortnight but appears to me to be reasonable in the absence of specific evidence from the plaintiff or Mr Robinson as to the additional time spent by Mr Robinson in the garden.

I think it is likely that, in the light of Mr Robinson’s age and past lack of involvement in household cleaning that the plaintiff will engage a local person to assist with the housework. That is likely to take the form of concerted domestic cleaning at the rate of two hours per fortnight. Otherwise the balance of the work will continue to be done by her husband.

The defendant accepted that a higher rate of hours per week for domestic assistance was appropriate in the six weeks following the incident. Although he proposed a rate equivalent to in excess of 50 hours per week, in my view this is excessive and I will allow 15 hours per week during this period. After that, in my view, an average rate of five hours per week for the period up until 14 February 2011 when the plaintiff’s osteomyelitis condition was clearly directly affecting her is appropriate. After that I will allow four hours per week. This will accommodate the additional domestic and garden related work undertaken by Mr Robinson causally related to the incident. In relation to the future I will allow four hours per week, one of which is likely to be undertaken by a commercially engaged cleaner at the agreed rate of $35 an hour. However, I will only allow these amounts for a period of 10 years after which, in my view, the likely state of health of the plaintiff and Harry is too uncertain to say that such domestic assistance will be provided or would not have been required in any event. That leads to calculations as follows:

(a)6 weeks after the accident: $2,250 (25×15×6);
(b)52 weeks up until 14 February 2011: $6,500 (25×5×52);
(c)193 weeks up until judgment: $19,300 (25×4×193).

This gives a total of $28,050. I award interest on this amount of $5840.

In relation to the future, three hours at $25 per hour for 10 years at a 3% discount rate is $33,885 ($75 per week multiplier 451.8). One hour at $35 per hour for 10 years at a 3% discount rate is $15,813 ($35 per week multiplier 451.8). This gives a total of $49,698.

Summary

The following table is a summary of the damages that I have assessed:

General Damages

$170,000

Interest on past component ($110,000)

$10,626

Income Loss – past

$203,883

Interest on past

$35,547

Future

$264,000

Superannuation Loss – past

$909

Griffiths v Kerkemeyer - Past

$28,050

Interest on past

$5,840

Griffiths v Kerkemeyer - Future

$49,698

Out-of-pocket expenses- Past

$25,913

Out-of-pocket expenses - Future

$13,648

Interest on past

To be determined.

Orders

The order of the Court is:

1.The proceedings are listed on 17 November 2014 at 9:30 am to hear any submissions in relation to costs and interest on past out-of-pocket expenses and for the making of final orders.

I certify that the preceding two hundred and thirty seven [237] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Master Mossop.

Associate:

Date: 7 November 2014

General Damages	$170,000
Interest on past component ($110,000)	$10,626
Income Loss – past	$203,883
Interest on past	$35,547
Future	$264,000
Superannuation Loss – past	$909
Griffiths v Kerkemeyer - Past	$28,050
Interest on past	$5,840
Griffiths v Kerkemeyer - Future	$49,698
Out-of-pocket expenses- Past	$25,913
Out-of-pocket expenses - Future	$13,648
Interest on past	To be determined.